Human Rights in Criminal Law

Criminal law and criminal procedural law have fallen short in providing human rights protection. Several offences, such as crimes against the state and public order offences are vague. This raises concerns that they lend themselves to being used as a tool to criminalise political opponents or to harass vulnerable groups in society. The freedom of the press is threatened by journalists facing criminal charges for defamation. Freedom to religion, including changing one's beliefs, is undermined by the crime of apostasy. The plethora of broad offences in the Criminal Code and other legislation, such as the Public Order Act, overly criminalises conduct justified as an expression of rights. As such, it stifles individual freedoms and democratic life in Sudan.

The law provides insufficient safeguards for anyone arrested or detained. The Bill of Rights in the National Interim Constitution guarantees the right to life, the right to be free from torture as well as the right to personal liberty. However, statutory laws do not fully guarantee the right to access a lawyer of one's choice, to inform family members, and the right of access to a doctor. There is also no effective provision of habeas corpus. This is the possibility to challenge the legality of detention, which is a crucial safeguard against arbitrary detention and ‘ incommunicado ' detention.

The National Security Forces Act and emergency legislation provide broad powers of arrest and detention that lack safeguards and may facilitate human rights violations.

The independence of the judiciary is guaranteed in the National Interim Constitution but there is limited recognition of this principle in statutory law and in practice. A number of fair trial safeguards are enshrined as general principles in the Criminal Procedure Code. However, legislation such as the National Security Forces Act, the anti-terrorism law and emergency legislation provide the authorities with broad powers that undermine the right to defence. The same applies to the establishment of Special Courts that do not provide adequate fair trial guarantees. In addition, the Criminal Procedure Code provides for summary trials in cases of lesser punishment that do not respect the full rights of defence.

The punishment stipulated for a series of offences is inadequate. Punishments are either too lenient, such as the maximum punishment of three months imprisonment for the offence of torture in article 115 (2) of the Criminal Act, or excessive, such as some of the offences carrying the death penalty. Several offences carry punishments of flogging, amputation or stoning, which the UN Human Rights Committee and the African Commission on Human and Peoples' Rights has held to be inhuman and degrading.

The Criminal Act provides for capital punishment for numerous crimes, several of which do not constitute most serious crimes as mandated by international law. Furthermore, the Criminal Act allows the imposition of the death penalty against persons under the age of 18 in contravention of international standards. Concerns over inadequate safeguards against the use of information extracted under torture and the absence of fair trials add to a situation in which the imposition of the death penalty will constitute a violation of the right to life.

Our position:

We have proposed a series of changes to bring the practice of the police and the security forces into conformity with international human rights standards. In particular, we have recommended that the role of the security forces should be confined to intelligence gathering and should not include the powers to arrest and detain individuals. Members of the police or the security forces should not benefit from immunity legislation and should not be subject to the jurisdiction of special courts, both of which contribute to the perpetuation of impunity.